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Mueller muddies the water on why Trump didn’t face indictment

He’s been clear elsewhere.

Former special counsel Robert S. Mueller III testifies before the House Judiciary Committee on Capitol Hill on Wednesday. (Melina Mara/The Washington Post)

Rep. Ted Lieu (D-Calif.), questioning former special counsel Robert S. Mueller III hours into Mueller’s House Judiciary Committee testimony, posed a fairly straightforward question.

“The reason, again, that you did not indict Donald Trump,” Lieu asked, “is because of OLC opinion that you cannot indict a sitting president, correct?”

The “OLC” in that question refers to the Justice Department’s Office of Legal Counsel. In 2000, the OLC issued a ruling that a sitting president couldn’t be indicted on criminal charges. Was that ruling, Lieu was asking, the reason that Trump didn’t face criminal charges?

“That is correct,” Mueller responded.

This, standing by itself, is an explosive exchange. The implication is that but for the OLC Trump would face indictment, presumably on charges of obstruction of justice.

But it’s almost certainly not what Mueller meant.

By that point, Mueller was in the habit of offering terse replies to the questions he had been asked. Later, responding to a question from Rep. Veronica Escobar (D-Tex.), Mueller offered another quick affirmative when asked whether a decision against indictment was informed “in part” by the OLC opinion. That is a much different claim — and not one that’s immediately reconcilable with his response to Lieu.

We need not rely solely on Mueller’s response to Lieu, however. This question of whether the OLC guideline is the reason Trump avoided indictment has been parsed repeatedly, even prompting an unusual joint statement from Mueller’s office and the Justice Department.

Mueller’s report itself says this:

“Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, ... this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction. And apart from OLC’s constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.”

Later, it adds:

“[W]e considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. ... Fairness concerns counseled against potentially reaching that judgment when no charges can be brought.”

In his April 18 news conference preceding the release of the report, Attorney General William P. Barr was asked whether Trump would escape indictment because of the OLC guidelines.

“We specifically asked him about the OLC opinion,” Barr says of Mueller, “and whether or not he was taking the position that he would have found a crime but for the existence of the OLC opinion. He made it very clear several times that that was not his position. He was not saying that but for the OLC opinion he would have found a crime; he made it clear that he had not made the determination that there was a crime.”

The “we” in that quote refers to Barr and then-Deputy Attorney General Rod J. Rosenstein. In Barr’s March letter summarizing Mueller’s report, the attorney general indicates that it was his and Rosenstein’s determination that Trump hadn’t broken obstruction of justice statutes, not Mueller’s. Earlier that month, before the conclusion of Mueller’s investigation, the special counsel had informed the Justice Department team that he wouldn’t recommend for or against indictment.

In May, Mueller gave a news conference as he prepared to leave his role as special counsel. During those comments, he stated that “charging the president with a crime was ... not an option we could consider,” given the OLC guidelines.

In short order, Mueller’s office and the Department of Justice put out a clarifying statement.

“The Attorney General has previously stated that the Special Counsel repeatedly affirmed that he was not saying that, but for the OLC opinion, he would have found the President obstructed justice,” it read. “The Special Counsel’s report and his statement today made clear that the office concluded it would not reach a determination — one way or the other — about whether the President committed a crime. There is no conflict between these statements.”

That’s an important distinction. While Mueller appeared to say to Lieu that his team would have indicted Trump were it not for the OLC opinion, the May statement from his office clarifies that the OLC opinion meant that no recommendation would have been made either way.

Think of a parent asked to consider drawings by his two children, a boy and a girl. At the outset, he signs a pledge not to say which he preferred. If he were then asked, “Is the reason you didn’t say you liked your son’s drawing better was because of the pledge,” he might accurately say yes — even if the implication is then that he liked the son’s drawing better. A brief answer but a problematic one.

Rep. Debbie Lesko (R-Ariz.) tried to get Mueller to clarify his comment to Lieu, but, perhaps concerned about stepping into a trap, Mueller was evasive.

“My conclusion is that what you told Mr. Lieu really contradicts what you said in the report,” Lesko said. She’s right — and it seems likely we’ll soon get a clarification to that effect.

Update: As he began his appearance before the House Intelligence Committee, Mueller did exactly that.

Lieu’s presentation was “not the correct way to say it.” As his report said, Mueller continued, “we did not reach a determination as to whether the president committed a crime."